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Three major challenges in managing non-native sedentary Barents Sea snow crab (Chionoecetes opilio)
Marine Policy 71 (2016) 38–43
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Marine Policy journal homepage: www.elsevier.com/locate/marpol
Three major challenges in managing non-native sedentary Barents Sea snow crab (Chionoecetes opilio) Harald Sakarias Brøvig Hansen Fridtjof Nansen Institute, P.O. Box 326, 1326 Lysaker, Norway
art ic l e i nf o
a b s t r a c t
Article history: Received 18 December 2015 Received in revised form 2 May 2016 Accepted 11 May 2016 Available online 21 May 2016
Snow crab (Chionoecetes opilio), a sedentary non-native species is colonizing the Barents Sea continental shelf and may reach a yearly landed value of NOK 7.5 billion. However, Norway has not yet established a management regime as the new stock poses several challenges, of which three are treated here. The first challenge is that non-native species threaten global biodiversity and are regulated by international law. The second challenge is that the stock spreads across a continental shelf shared between Norway and Russia, harvested outside economic zones and has the status as sedentary. The third challenge is that a large part of the future fishery is expected to take place around Svalbard, an area of highly disputed resource rights. For now no hazardous ecosystem effects have been detected and as the species is not considered to be introduced by people, the coastal states are not obliged to control it by UNCLOS or CBD. There is an agreement between the coastal states on the Loophole snow crab fishery, but as Norway has not yet established a management regime, it seems as the country is reluctant to consolidate the sovereignty the country claims to the continental shelf surrounding Svalbard. & 2016 Elsevier Ltd. All rights reserved.
Keywords: Snow crab (Chionoecetes opilio) Non-native Sedentary Barents Sea Loophole Svalbard CBD UNCLOS
Non-native snow crab (Chionoecetes opilio) has established in the Barents Sea [1], however when and how snow crab colonized the Barents Sea is unknown. The stock is viewed as a considerable economic opportunity and researchers have claimed that it might reach a yearly landed value of NOK 2,5 to 7,5 billion within 15 years [2]. By the first nine months of 2015 vessels from Norway, Spain, Lithuania and Latvia landed 6030 tons of Barents Sea snow crab in Norwegian ports. Most of what was landed in Norway came from the Loophole,1 although some catch is registered in the Svalbard Fishery Protection Zone [3]. However, there are several challenges that need to be handled before a management regime can be established; three challenges will be treated in this article. As well as representing a potentially important source of income, the non-native species represents a potential threat to the Barents Sea ecosystem and its highly productive fisheries. Snow crab feeds on the benthic community (organisms living on or near the seabed) [4], which is of vital ecological importance [5]. In 2012 snow crab was listed as a species with “severe ecological risk” (SE), the highest impact category on the Norwegian blacklist of alien species [6]. There are several international treaties concerning
coastal state obligations towards non-native species which will be evaluated in this article. In addition snow crabs are spreading across the Barents Sea continental shelf, a shelf shared between the Kingdom of Norway and the Russian Federation [Fig. 1]. Therefore it must be clarified which zones and legal rules apply to the species. Such regulations are founded in the United Nations Convention on Law of the Sea (UNCLOS). Legally the Barents Sea snow crab is a special case, as the crab is currently primarily harvested outside Exclusive Economic Zones, but inside the continental shelf. At a working meeting in July 2015, Norway and Russia established that snow crab is a sedentary species,2 and that the two coastal states thus have exclusive rights to harvest snow crab on the continental shelf of the Barents Sea [7]. This implies that Russia has sovereign rights to harvest and manage snow crab within most of the Loophole, and in principle can exclude Norwegian boats from harvesting snow crab within (most of) the Loophole. The Loophole is not the only challenging area for snow crab management. In fact snow crab might become the first major continental shelf resource to be exploited on the continental shelf surrounding Svalbard [4], were Norway is in dispute with several states on interpretation of the Svalbard Treaty regarding marine
E-mail address: [email protected] The Loophole is an area of the Barents Sea not covered by Exclusive Economic Zones as illustrated by Fig. 1.
2 Sedentary species are bottom living organisms and adhere to the continental shelf, not the Exclusive Economic Zones (UNCLOS article 68 and article 77, paragraph 4).
1. Introduction
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http://dx.doi.org/10.1016/j.marpol.2016.05.013 0308-597X/& 2016 Elsevier Ltd. All rights reserved.
H.S.B. Hansen / Marine Policy 71 (2016) 38–43
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Fig. 1. Economic zones and the delimitation line of the Barents Sea. The original claims (stippled lines) are not of interest.
resource rights [8]. Thus, for the future utilization and management of Barents Sea snow crab, it is necessary to clarify which obligations the coastal states have towards snow crab as a non-native species and which countries holds the rights to harvest and manage snow crab in the Loophole and on the continental shelf surrounding Svalbard? To answer these questions a review of relevant law and literature is conducted.
2. Barents Sea snow crab Snow crab is a non-native species in the Barents Sea, distributed in the Northwest Atlantic Ocean, the North Pacific Ocean, the Bering Sea and the Sea of Japan [9,10]. It is unknown when and how snow crab reached the Barents Sea. The establishment of snow crab is not proven to be the direct or indirect result of human action. In 2013 PINRO3 estimated the commercial stock of the Barents 3 PINRO (Knipovich Polar Research Institute of Marine Fisheries and Oceanography) is a regional Russian fisheries and oceanographic research institute based in northwestern Russia.
Sea to be 370 million individuals, with a total estimated biomass of 188,260 tons [11]. In some locations in the southeastern Barents Sea 41% of the benthic biomass consists of snow crab [12]. The population has not stabilized [11]. A relatively long planktonic larval phase may facilitate long distance dispersal between widelydistributed populations [13]. Snow crab will likely colonize most of eastern, central and northern Barents Sea, including the continental shelf surrounding Svalbard. Snow crab has already established on the Russian continental shelf, including the Russian part of the Loophole, while smaller concentrations have been found on the Norwegian continental shelf, including the Svalbard area [4,11].
3. Handling snow crab as a non-native Non-native species are seen as threats to ecosystems; as such it is crucial to understand the concerns based on existing knowledge from invasion biology and coastal state obligations to deal with non-natives. Some might even argue that snow crab is a pest, as such it is crucial to get the definitions right. Non-native species are typically described as species whose change in distribution has been caused by humans (directly or
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indirectly) and is often used as a synonym of non-indigenous species as well as more value-laded terms such as alien and invasive species [14]. Whether a species is a non-native or an immigrant does not necessarily have any ecological implications [14] and as such, in this article non-native is used to describe snow crab. Other terms are used to describe the impact of organisms. Pests are invasive species that reduce the availability, quality or value of some human resource [14]. There has been a bias towards only describing negative consequences of non-native species. However, non-native species have not always been considered negative. In 1854 the Société Impériale Zoologique d’Acclimatation was founded in Paris with the sole aim to introduce useful and ornamental species, and in 1860 a similar organization was founded in the United Kingdom [15]. It is possible to argue for the beneficial effects of non-native species, one example is that non-native species can be more likely to persist and provide ecosystem services in areas where climate is changing rapidly [16]. The establishment of a non-native species can be seen as a disturbance adding stress to, and changing, the ecosystem [17–19]. Crustaceans are among the most successful marine non-native species, sometimes reaching extremely high population densities. This subphylum often causes a substantial impact due to their omnivorous role leading to shifts in nutrient cycles and thus affect critical ecosystem services, biodiversity and fisheries [20]. Dvoretsky and Dvoretsky [11] found no negative impact on commercial fish and shrimp from snow crab in the Barents Sea. It can however be regarded as questionable to conclude on the effects of snow crab just yet, as the population is increasing and spreading. Dvoretsky and Dvoretsky did not evaluate the impact on noncommercial species. Considering the diet of Barents Sea snow crab, no major ecosystem effects have been identified [4]. It seems as if snow crab has found a niche previously not occupied. Without doubt snow crab affects the benthic community through predation and foraging behavior, but it is currently difficult to assess the magnitude of this influence. Snow crab could heavily affect the pelagic-benthic coupling, subsequently nutrient cycling and ecosystem services, however this could prove to enhance productivity and be considered of positive value [4]. As snow crab may support a fishery of considerable future revenue, and no substantial negative effects have been uncovered, snow crab seems to be of positive value to the Barents Sea and thus not a pest. However, there is a considerable risk adherent to the establishment, and effects may be uncovered at a later stage. As such snow crab may prove to be(come) a pest. The United Nations Convention on Law of the Sea (UNCLOS) gives states an obligation to prevent, reduce or control pollution of the marine environment resulting from … the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto (part XII art. 196). States shall take, individually or jointly as appropriate, all measures consistent with UNCLOS that are necessary, using for this purpose the best practical means at their disposal and in accordance with their capabilities, and they shall endeavor to harmonize their policies in this connection (art. 194). Both Norway and Russia are contracting parties to UNCLOS and to the Convention on Biological Diversity of 1992 (CBD). The CBD require the states to as far as possible and as appropriate (article 8 (h)) control or eradicate those alien species which threaten ecosystems, habitats or species, without giving a definition of alien species. It is difficult to assess how snow crab spread to and colonized the Barents Sea. There are currently no indications that snow crab was intentionally introduced to the Barents Sea. It is the leading perception that snow crab has migrated to the Barents Sea on its own, perhaps because of changed environmental conditions. As snow crab is to our best available knowledge not an intentional or
accidental introduction by human vectors, UNCLOS leaves no obligations to reduce or control snow crab in the Barents Sea. The lack of a definition of alien species in the CBD keeps this open to interpretation, but as all definitions of alien species in invasion biology literature only include species introduced directly or indirectly by human actions, snow crab can be excluded from this definition. Thus, this part of the CBD is not of relevance to the Barents Sea snow crab as of today. However, both Norway and Russia have adopted the precautionary approach to fisheries management through the Joint Norwegian Russian Fisheries Commission [21]. The precautionary approach is also founded in among others the FAO Code of Conduct for Responsible Fisheries and the UN Fish Stocks Agreement. This implies that the states shall be more cautious when information is uncertain, unreliable or inadequate and that “the lack of scientific knowledge should not be used as a reason for failing to undertake management measures that could prevent the degradation of the environment or the depletion of common pool resources” [21]. This could imply an effort to keep the biomass below a certain level and a continuous assessment of its ecosystem impact. If more knowledge is gained on its origin, the coastal states obligations according to the UNCLOS and the CBD should be assessed.
4. Continental shelf resource rights As the majority of Barents Sea snow crab catches is presently from the outer continental shelf there is a need to clarify the resource rights. The Loophole is outside Exclusive Economic Zones (EEZs), which means that the water column is international waters. However, as the Barents Sea is a continental shelf sea the sea floor is the sovereign resource of the coastal states. The Barents Sea Loophole spans some 62,400 square kilometers [22]. Most of the catches have come from the Russian part of the Loophole area. For some resources, the rights of the coastal states go even further than the 200 nautical miles EEZ. For living resources, this comprises what is called sedentary species. Long before the appearance of international law, there has been an opinion that sedentary fisheries were an exception to the rule that fishing in the high seas was free to all. Sedentary species have by many been considered as belonging to the soil or bed of the sea, rather than to the sea itself, and in this way being analogous to crops in a field [23]. Although states’ rights over the outer continental shelf (outside the 200 nm EEZ) are similar to the rights within the EEZ, there are several restrictions to the rights, as the water column above the continental shelf is regulated by the high seas regime. The continental shelves have been subject for several negotiations during the 1900s, and are now bound by United Nations Convention on Law of the Sea (UNCLOS) part VI [24]. The coastal State possesses sovereign rights for the purpose of exploring and exploiting its natural resources on the continental shelf, which includes living organisms belonging to sedentary species. That is organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil (UNCLOS article 77, paragraph 4). Unlike the EEZ regime, if a coastal state does not exercise its rights to exploit the resources on the continental shelf, it is not required to share those resources with other states (UNCLOS article 77, paragraph 2). In this way, sedentary species are managed more as oil and gas resources, than as fish. As such, sedentary species are not subject to the Straddling Fish Stocks Agreement; the coastal states are therefore not obliged to cooperate on management (Straddling Fish Stocks Agreement article 1, paragraph c). In nature there is no simple line of demarcation between sedentary organisms and other, rather a long series of gradations
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from the unquestionably fixed to the sea floor at one extreme to the unquestionable free from the sea floor at the other. While some species, such as corals and clams, clearly fit into the category, there is a gray area surrounding organisms such as crabs, scallops and lobsters [23,24]. This definition has been subject to several disputes, one such example was “the lobster war” between Brazil and France in the 1960s, where France claimed that a lobster population outside Brazil did not constitute a part of the natural resources belonging to the continental shelf. Thus, France dispatched a warship “to protect French nationals and to ensure freedom of the seas”. The countries never agreed, but Brazil gave French vessels permission to fish parts of the stock [25]. In the Japan-United States of America agreement on king crab fishing off Alaska (1965), Japan and the USA did not agree whether king crab is a natural resource of the continental shelf over which the coastal state has exclusive jurisdiction, or a high seas resource. These parties agreed to disagree, but found a way of cooperating on the management of the stock. The UK position on sedentary species and crustaceans has been expressed as follows: lobsters swim and crabs do not; therefore crabs are within the definition of sedentary species in UNCLOS and lobsters are not [26]. As it for most cases is of no relevance, as most resources are harvested within EEZs, and the definition “sedentary” is of no importance, it is of greater importance to evaluate this for the Barents Sea snow crab as the primary fishing ground is in the Loophole. A single word decides if snow crab should be managed as a fish stock in international waters, or as a resource of the continental shelf, such as minerals and oil. There does not seem to be any thorough legal assessments on whether snow crabs are legally sedentary or not, however according to a Marine Stewardship Council fishery assessment for the Scotian shelf snow crab trap fishery, snow crab is a sedentary species [27]. In addition Fisheries and Oceans Canada states that the Northwest Atlantic Fisheries Organization (NAFO) does not cover snow crab because it is a sedentary species [28]. From this it seems as there may be a consensus. From a biological point of view the question on whether snow crab is sedentary or not is rather intriguing, as the understanding of a sedentary species in biology and law are two different things. Following one definition sedentary species are either (a) not migratory or (b) permanently attached to something [29]. Snow crab is not attached to the seafloor and migrates throughout life. In addition the snow crab life cycle consists of several planktonic stages [30]. Following from this few biologists would conclude that snow crab is sedentary. Still, following a strict interpretation of the wording in UNCLOS, snow crab is at the harvestable stage (for the most) in constant physical contact with the sea floor, and can easily be argued to be sedentary, as established by Norway and Russia. This implies that EEZ regulations are not of relevance to the Barents Sea snow crab, rather the continental shelf rules apply. There is a clear impracticability in managing mobile fish and sedentary species in the same waters under different regimes; interference and conflict seem inevitable [23]. In addition there is a challenge for coastal states to monitor and enforce rules on the outer continental shelf. While UNCLOS explicitly provides for jurisdiction of coastal states to board vessels in the EEZ to ensure compliance with its fisheries regulations (UNCLOS article 73), there is no corresponding authorization regarding fisheries on the outer continental shelf. Article 92 of UNCLOS provides for the exclusive jurisdiction of the flag state on the high seas. State practice on this subject, however, indicates that states may not regard this absence of an explicit authorization to board and inspect an insuperable obstacle.4 However, a management regime 4 The Canada-US dispute on scallops centered on the legitimacy that scallops are sedentary, rather than the legality of the arrest of the vessel [24].
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enforcing a different set of rules for vessels fishing in the water column and on sedentary species can prove challenging. Ultimately, the management regime for Barents Sea snow crab is dependent upon the coastal states willingness to cooperate. As snow crab is a sedentary species, the coastal states are not obliged to cooperate on managing snow crab, as they are with straddling stocks. However, as Norway and Russia have chosen to have a mutual access regime for snow crab fishing on the Loophole continental shelf (in 2016), it seems as common management is not only strategic with mutual benefits, but also feasible.
5. Disputed Svalbard As a substantial snow crab fishery is expected on the continental shelf surrounding Svalbard, a review of resource rights, potential conflicts and management implications is needed. Through the Svalbard Treaty of 1920 (the Treaty) Norway gained sovereignty over Svalbard, but renounced certain rights. The Treaty gives foreign nationals (from signatory states) the same commercial rights as Norwegians [8]. The Treaty includes the territorial waters of Svalbard, while Norway holds that the Treaty stipulations do not apply to areas beyond the territorial sea of Svalbard (12 nm). There is however not an international consensus on Norway's sovereign rights to the continental shelf resources in this area. The controversy originates in the Treaty's weak references to applicable maritime areas, made prior to the United Nations Law of the Sea (UNCLOS) and thus legal concepts such as the continental shelf and the 200 nautical miles Exclusive Economic Zone(s) [31]. In 1977 Norway established the Svalbard fishery protection zone (SFPZ) of 200 nautical miles around the Svalbard archipelago [32]. Other states have claimed that the Treaty and its provisions concerning the equal rights to engage in fishing also apply beyond the territorial waters of the archipelago, and that Norway may not impose restrictions or take necessary enforcement measures. It is indicated by Molenaar [8] that the view of the other parties (not Norway) is more in line with the intentions of the negotiators of the Treaty in 1920. Norway is interpreting the wording of the Treaty more directly. Following from this disagreement Norway chose to establish a fisheries protection zone rather than a full economic zone [33]. Even though Norway maintains a legal right to reserve fishing in the zone exclusively for Norwegian fishermen, its management practices are non-discriminatory, and as such the Norwegian management measures in the SFPZ have generally been complied with in practice [21]. The non-discriminatory fisheries management is based on criteria of traditional fishing in the area, and as such vessels from Norway, Russia, the EU and the Faroe Islands are permitted to carry out traditional fishing activities in the area. Regulations on fisheries in the territorial sea is founded in the Svalbard Act of 1925, while the fisheries management in the SFPZ is founded in the Act on Norwegian EEZ of 1976 [34]. Even if many countries object to Norway’s ability to establish an EEZ, these questions have not been further pursued [34]. This may change if new economic resources, such as snow crab or oil and gas can be exploited in the SFPZ. Even if the SFPZ is subject to the Treaty, it can be maintained that Norway is the legislative and managing authority [35]. Portugal, Spain and the Russian Federation have on some occasions challenged Norway's enforcement in the SFPZ. Russia did so in 2011 in response to the arrest of the Russian trawler Sapphire II by the Norwegian coast guard [8]. Several challenge that Norway has this right in the SFPZ. Still, the Treaty does not provide other States Parties with the right to be involved in decision-making or enforcement in the SFPZ, as such the Supreme Court of Norway
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has upheld Norway’s right establish the SFPZ and enforce regulations (see e.g. HR-2006–1997A case 2006/871). No continental shelf resources have been exploited in the waters surrounding Svalbard. Norway claims that Svalbard has no separate continental shelf, as only states generate a continental shelf, in effect denoting that if the Svalbard Treaty is applicable to the SFPZ it would not be applicable to the shelf generated by the Norwegian mainland. The continental shelf surrounding Svalbard is thus the Norwegian continental shelf, as was accepted by the Commission on the Limits of the Continental Shelf in 2009 [36]. As no major continental shelf resources have been harvested, this has never been tried before a court. This may change if new economic resources, such as snow crab or oil and gas can be exploited with large profits on the continental shelf surrounding Svalbard. It can be argued that both the SFPZ and the continental shelf are covered by the intentions of the Treaty, thus all signatory parties have the rights to harvest snow crab. This means that Norway can manage the fishery, but nationals of all signatory states have non-discriminatory rights to harvest. For other fisheries the rights have been distributed non-discriminatorily based on traditional fishing. With new commercial species in the Svalbard area, no nations have traditionally been fishing these, and thus no countries can claim being more dependent upon this fishery than others. Even though Norway would claim sovereign rights to continental shelf resources, the country might choose to distribute fishing rights to parties already fishing in the area to mitigate conflict.
6. Closing remarks In general, the rapid snow crab colonization of the Barents Sea is creating several challenges to the management system, both in matter of ecosystem impact, sedentarity, changes in geographic distribution, conflict with other fisheries, and how to create a management regime in which both harmful ecosystem effects are limited and economic output is maximized. As such, more research is needed. The establishment of snow crab in the Barents Sea can be seen either as a natural expansion of distribution with prospect of substantial new commercial benefits, or as an alien invasion of a dangerous pest. The unavoidable matter of fact is that snow crab has established in the Barents Sea and is likely to spread throughout most of the eastern, central and northern Barents Sea. For now, snow crab have shown no significant detrimental effects for the Barents Sea ecosystem and the coastal states are not obliged to control or eradicate snow crab according to UNCLOS or CBD. Taking the rapid spreading of snow crab, the value of the stock, the ecosystem impact and the lack of efficient control mechanisms [4] into account, there are in reality no management alternatives to a profitable fishery. As no countries have questioned the sedentary status of snow crab, snow crab should be considered sedentary. Norway and Russia thus have full sovereignty over Barents Sea snow crab on their separate established parts of the Barents Sea continental shelf. However, as Norway is not yet establishing a management regime, it seems as if the country is reluctant to consolidate the sovereignty the country claims to the continental shelf surrounding Svalbard. With a changing climate and several other anthropogenic disturbances acting on marine ecosystems, it is evident that commercial stocks of both fish and sedentary species will shift in abundance and geographic distribution [37]. When several coastal stated are involved, this creates challenges when large economic values shift between Exclusive Economic Zones and continental shelves. As such, the challenges in managing snow crab may give useful insight into future issues. Effective governance might
require the ability to adapt national and international institutions to more unstable circumstances.
Acknowledgments The author wishes to thank director Geir Hønneland at the Fridtjof Nansen Institute for support and for facilitating the necessary conditions for the completion of this article.
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Marine Policy journal homepage: www.elsevier.com/locate/marpol
Three major challenges in managing non-native sedentary Barents Sea snow crab (Chionoecetes opilio) Harald Sakarias Brøvig Hansen Fridtjof Nansen Institute, P.O. Box 326, 1326 Lysaker, Norway
art ic l e i nf o
a b s t r a c t
Article history: Received 18 December 2015 Received in revised form 2 May 2016 Accepted 11 May 2016 Available online 21 May 2016
Snow crab (Chionoecetes opilio), a sedentary non-native species is colonizing the Barents Sea continental shelf and may reach a yearly landed value of NOK 7.5 billion. However, Norway has not yet established a management regime as the new stock poses several challenges, of which three are treated here. The first challenge is that non-native species threaten global biodiversity and are regulated by international law. The second challenge is that the stock spreads across a continental shelf shared between Norway and Russia, harvested outside economic zones and has the status as sedentary. The third challenge is that a large part of the future fishery is expected to take place around Svalbard, an area of highly disputed resource rights. For now no hazardous ecosystem effects have been detected and as the species is not considered to be introduced by people, the coastal states are not obliged to control it by UNCLOS or CBD. There is an agreement between the coastal states on the Loophole snow crab fishery, but as Norway has not yet established a management regime, it seems as the country is reluctant to consolidate the sovereignty the country claims to the continental shelf surrounding Svalbard. & 2016 Elsevier Ltd. All rights reserved.
Keywords: Snow crab (Chionoecetes opilio) Non-native Sedentary Barents Sea Loophole Svalbard CBD UNCLOS
Non-native snow crab (Chionoecetes opilio) has established in the Barents Sea [1], however when and how snow crab colonized the Barents Sea is unknown. The stock is viewed as a considerable economic opportunity and researchers have claimed that it might reach a yearly landed value of NOK 2,5 to 7,5 billion within 15 years [2]. By the first nine months of 2015 vessels from Norway, Spain, Lithuania and Latvia landed 6030 tons of Barents Sea snow crab in Norwegian ports. Most of what was landed in Norway came from the Loophole,1 although some catch is registered in the Svalbard Fishery Protection Zone [3]. However, there are several challenges that need to be handled before a management regime can be established; three challenges will be treated in this article. As well as representing a potentially important source of income, the non-native species represents a potential threat to the Barents Sea ecosystem and its highly productive fisheries. Snow crab feeds on the benthic community (organisms living on or near the seabed) [4], which is of vital ecological importance [5]. In 2012 snow crab was listed as a species with “severe ecological risk” (SE), the highest impact category on the Norwegian blacklist of alien species [6]. There are several international treaties concerning
coastal state obligations towards non-native species which will be evaluated in this article. In addition snow crabs are spreading across the Barents Sea continental shelf, a shelf shared between the Kingdom of Norway and the Russian Federation [Fig. 1]. Therefore it must be clarified which zones and legal rules apply to the species. Such regulations are founded in the United Nations Convention on Law of the Sea (UNCLOS). Legally the Barents Sea snow crab is a special case, as the crab is currently primarily harvested outside Exclusive Economic Zones, but inside the continental shelf. At a working meeting in July 2015, Norway and Russia established that snow crab is a sedentary species,2 and that the two coastal states thus have exclusive rights to harvest snow crab on the continental shelf of the Barents Sea [7]. This implies that Russia has sovereign rights to harvest and manage snow crab within most of the Loophole, and in principle can exclude Norwegian boats from harvesting snow crab within (most of) the Loophole. The Loophole is not the only challenging area for snow crab management. In fact snow crab might become the first major continental shelf resource to be exploited on the continental shelf surrounding Svalbard [4], were Norway is in dispute with several states on interpretation of the Svalbard Treaty regarding marine
E-mail address: [email protected] The Loophole is an area of the Barents Sea not covered by Exclusive Economic Zones as illustrated by Fig. 1.
2 Sedentary species are bottom living organisms and adhere to the continental shelf, not the Exclusive Economic Zones (UNCLOS article 68 and article 77, paragraph 4).
1. Introduction
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http://dx.doi.org/10.1016/j.marpol.2016.05.013 0308-597X/& 2016 Elsevier Ltd. All rights reserved.
H.S.B. Hansen / Marine Policy 71 (2016) 38–43
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Fig. 1. Economic zones and the delimitation line of the Barents Sea. The original claims (stippled lines) are not of interest.
resource rights [8]. Thus, for the future utilization and management of Barents Sea snow crab, it is necessary to clarify which obligations the coastal states have towards snow crab as a non-native species and which countries holds the rights to harvest and manage snow crab in the Loophole and on the continental shelf surrounding Svalbard? To answer these questions a review of relevant law and literature is conducted.
2. Barents Sea snow crab Snow crab is a non-native species in the Barents Sea, distributed in the Northwest Atlantic Ocean, the North Pacific Ocean, the Bering Sea and the Sea of Japan [9,10]. It is unknown when and how snow crab reached the Barents Sea. The establishment of snow crab is not proven to be the direct or indirect result of human action. In 2013 PINRO3 estimated the commercial stock of the Barents 3 PINRO (Knipovich Polar Research Institute of Marine Fisheries and Oceanography) is a regional Russian fisheries and oceanographic research institute based in northwestern Russia.
Sea to be 370 million individuals, with a total estimated biomass of 188,260 tons [11]. In some locations in the southeastern Barents Sea 41% of the benthic biomass consists of snow crab [12]. The population has not stabilized [11]. A relatively long planktonic larval phase may facilitate long distance dispersal between widelydistributed populations [13]. Snow crab will likely colonize most of eastern, central and northern Barents Sea, including the continental shelf surrounding Svalbard. Snow crab has already established on the Russian continental shelf, including the Russian part of the Loophole, while smaller concentrations have been found on the Norwegian continental shelf, including the Svalbard area [4,11].
3. Handling snow crab as a non-native Non-native species are seen as threats to ecosystems; as such it is crucial to understand the concerns based on existing knowledge from invasion biology and coastal state obligations to deal with non-natives. Some might even argue that snow crab is a pest, as such it is crucial to get the definitions right. Non-native species are typically described as species whose change in distribution has been caused by humans (directly or
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indirectly) and is often used as a synonym of non-indigenous species as well as more value-laded terms such as alien and invasive species [14]. Whether a species is a non-native or an immigrant does not necessarily have any ecological implications [14] and as such, in this article non-native is used to describe snow crab. Other terms are used to describe the impact of organisms. Pests are invasive species that reduce the availability, quality or value of some human resource [14]. There has been a bias towards only describing negative consequences of non-native species. However, non-native species have not always been considered negative. In 1854 the Société Impériale Zoologique d’Acclimatation was founded in Paris with the sole aim to introduce useful and ornamental species, and in 1860 a similar organization was founded in the United Kingdom [15]. It is possible to argue for the beneficial effects of non-native species, one example is that non-native species can be more likely to persist and provide ecosystem services in areas where climate is changing rapidly [16]. The establishment of a non-native species can be seen as a disturbance adding stress to, and changing, the ecosystem [17–19]. Crustaceans are among the most successful marine non-native species, sometimes reaching extremely high population densities. This subphylum often causes a substantial impact due to their omnivorous role leading to shifts in nutrient cycles and thus affect critical ecosystem services, biodiversity and fisheries [20]. Dvoretsky and Dvoretsky [11] found no negative impact on commercial fish and shrimp from snow crab in the Barents Sea. It can however be regarded as questionable to conclude on the effects of snow crab just yet, as the population is increasing and spreading. Dvoretsky and Dvoretsky did not evaluate the impact on noncommercial species. Considering the diet of Barents Sea snow crab, no major ecosystem effects have been identified [4]. It seems as if snow crab has found a niche previously not occupied. Without doubt snow crab affects the benthic community through predation and foraging behavior, but it is currently difficult to assess the magnitude of this influence. Snow crab could heavily affect the pelagic-benthic coupling, subsequently nutrient cycling and ecosystem services, however this could prove to enhance productivity and be considered of positive value [4]. As snow crab may support a fishery of considerable future revenue, and no substantial negative effects have been uncovered, snow crab seems to be of positive value to the Barents Sea and thus not a pest. However, there is a considerable risk adherent to the establishment, and effects may be uncovered at a later stage. As such snow crab may prove to be(come) a pest. The United Nations Convention on Law of the Sea (UNCLOS) gives states an obligation to prevent, reduce or control pollution of the marine environment resulting from … the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto (part XII art. 196). States shall take, individually or jointly as appropriate, all measures consistent with UNCLOS that are necessary, using for this purpose the best practical means at their disposal and in accordance with their capabilities, and they shall endeavor to harmonize their policies in this connection (art. 194). Both Norway and Russia are contracting parties to UNCLOS and to the Convention on Biological Diversity of 1992 (CBD). The CBD require the states to as far as possible and as appropriate (article 8 (h)) control or eradicate those alien species which threaten ecosystems, habitats or species, without giving a definition of alien species. It is difficult to assess how snow crab spread to and colonized the Barents Sea. There are currently no indications that snow crab was intentionally introduced to the Barents Sea. It is the leading perception that snow crab has migrated to the Barents Sea on its own, perhaps because of changed environmental conditions. As snow crab is to our best available knowledge not an intentional or
accidental introduction by human vectors, UNCLOS leaves no obligations to reduce or control snow crab in the Barents Sea. The lack of a definition of alien species in the CBD keeps this open to interpretation, but as all definitions of alien species in invasion biology literature only include species introduced directly or indirectly by human actions, snow crab can be excluded from this definition. Thus, this part of the CBD is not of relevance to the Barents Sea snow crab as of today. However, both Norway and Russia have adopted the precautionary approach to fisheries management through the Joint Norwegian Russian Fisheries Commission [21]. The precautionary approach is also founded in among others the FAO Code of Conduct for Responsible Fisheries and the UN Fish Stocks Agreement. This implies that the states shall be more cautious when information is uncertain, unreliable or inadequate and that “the lack of scientific knowledge should not be used as a reason for failing to undertake management measures that could prevent the degradation of the environment or the depletion of common pool resources” [21]. This could imply an effort to keep the biomass below a certain level and a continuous assessment of its ecosystem impact. If more knowledge is gained on its origin, the coastal states obligations according to the UNCLOS and the CBD should be assessed.
4. Continental shelf resource rights As the majority of Barents Sea snow crab catches is presently from the outer continental shelf there is a need to clarify the resource rights. The Loophole is outside Exclusive Economic Zones (EEZs), which means that the water column is international waters. However, as the Barents Sea is a continental shelf sea the sea floor is the sovereign resource of the coastal states. The Barents Sea Loophole spans some 62,400 square kilometers [22]. Most of the catches have come from the Russian part of the Loophole area. For some resources, the rights of the coastal states go even further than the 200 nautical miles EEZ. For living resources, this comprises what is called sedentary species. Long before the appearance of international law, there has been an opinion that sedentary fisheries were an exception to the rule that fishing in the high seas was free to all. Sedentary species have by many been considered as belonging to the soil or bed of the sea, rather than to the sea itself, and in this way being analogous to crops in a field [23]. Although states’ rights over the outer continental shelf (outside the 200 nm EEZ) are similar to the rights within the EEZ, there are several restrictions to the rights, as the water column above the continental shelf is regulated by the high seas regime. The continental shelves have been subject for several negotiations during the 1900s, and are now bound by United Nations Convention on Law of the Sea (UNCLOS) part VI [24]. The coastal State possesses sovereign rights for the purpose of exploring and exploiting its natural resources on the continental shelf, which includes living organisms belonging to sedentary species. That is organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil (UNCLOS article 77, paragraph 4). Unlike the EEZ regime, if a coastal state does not exercise its rights to exploit the resources on the continental shelf, it is not required to share those resources with other states (UNCLOS article 77, paragraph 2). In this way, sedentary species are managed more as oil and gas resources, than as fish. As such, sedentary species are not subject to the Straddling Fish Stocks Agreement; the coastal states are therefore not obliged to cooperate on management (Straddling Fish Stocks Agreement article 1, paragraph c). In nature there is no simple line of demarcation between sedentary organisms and other, rather a long series of gradations
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from the unquestionably fixed to the sea floor at one extreme to the unquestionable free from the sea floor at the other. While some species, such as corals and clams, clearly fit into the category, there is a gray area surrounding organisms such as crabs, scallops and lobsters [23,24]. This definition has been subject to several disputes, one such example was “the lobster war” between Brazil and France in the 1960s, where France claimed that a lobster population outside Brazil did not constitute a part of the natural resources belonging to the continental shelf. Thus, France dispatched a warship “to protect French nationals and to ensure freedom of the seas”. The countries never agreed, but Brazil gave French vessels permission to fish parts of the stock [25]. In the Japan-United States of America agreement on king crab fishing off Alaska (1965), Japan and the USA did not agree whether king crab is a natural resource of the continental shelf over which the coastal state has exclusive jurisdiction, or a high seas resource. These parties agreed to disagree, but found a way of cooperating on the management of the stock. The UK position on sedentary species and crustaceans has been expressed as follows: lobsters swim and crabs do not; therefore crabs are within the definition of sedentary species in UNCLOS and lobsters are not [26]. As it for most cases is of no relevance, as most resources are harvested within EEZs, and the definition “sedentary” is of no importance, it is of greater importance to evaluate this for the Barents Sea snow crab as the primary fishing ground is in the Loophole. A single word decides if snow crab should be managed as a fish stock in international waters, or as a resource of the continental shelf, such as minerals and oil. There does not seem to be any thorough legal assessments on whether snow crabs are legally sedentary or not, however according to a Marine Stewardship Council fishery assessment for the Scotian shelf snow crab trap fishery, snow crab is a sedentary species [27]. In addition Fisheries and Oceans Canada states that the Northwest Atlantic Fisheries Organization (NAFO) does not cover snow crab because it is a sedentary species [28]. From this it seems as there may be a consensus. From a biological point of view the question on whether snow crab is sedentary or not is rather intriguing, as the understanding of a sedentary species in biology and law are two different things. Following one definition sedentary species are either (a) not migratory or (b) permanently attached to something [29]. Snow crab is not attached to the seafloor and migrates throughout life. In addition the snow crab life cycle consists of several planktonic stages [30]. Following from this few biologists would conclude that snow crab is sedentary. Still, following a strict interpretation of the wording in UNCLOS, snow crab is at the harvestable stage (for the most) in constant physical contact with the sea floor, and can easily be argued to be sedentary, as established by Norway and Russia. This implies that EEZ regulations are not of relevance to the Barents Sea snow crab, rather the continental shelf rules apply. There is a clear impracticability in managing mobile fish and sedentary species in the same waters under different regimes; interference and conflict seem inevitable [23]. In addition there is a challenge for coastal states to monitor and enforce rules on the outer continental shelf. While UNCLOS explicitly provides for jurisdiction of coastal states to board vessels in the EEZ to ensure compliance with its fisheries regulations (UNCLOS article 73), there is no corresponding authorization regarding fisheries on the outer continental shelf. Article 92 of UNCLOS provides for the exclusive jurisdiction of the flag state on the high seas. State practice on this subject, however, indicates that states may not regard this absence of an explicit authorization to board and inspect an insuperable obstacle.4 However, a management regime 4 The Canada-US dispute on scallops centered on the legitimacy that scallops are sedentary, rather than the legality of the arrest of the vessel [24].
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enforcing a different set of rules for vessels fishing in the water column and on sedentary species can prove challenging. Ultimately, the management regime for Barents Sea snow crab is dependent upon the coastal states willingness to cooperate. As snow crab is a sedentary species, the coastal states are not obliged to cooperate on managing snow crab, as they are with straddling stocks. However, as Norway and Russia have chosen to have a mutual access regime for snow crab fishing on the Loophole continental shelf (in 2016), it seems as common management is not only strategic with mutual benefits, but also feasible.
5. Disputed Svalbard As a substantial snow crab fishery is expected on the continental shelf surrounding Svalbard, a review of resource rights, potential conflicts and management implications is needed. Through the Svalbard Treaty of 1920 (the Treaty) Norway gained sovereignty over Svalbard, but renounced certain rights. The Treaty gives foreign nationals (from signatory states) the same commercial rights as Norwegians [8]. The Treaty includes the territorial waters of Svalbard, while Norway holds that the Treaty stipulations do not apply to areas beyond the territorial sea of Svalbard (12 nm). There is however not an international consensus on Norway's sovereign rights to the continental shelf resources in this area. The controversy originates in the Treaty's weak references to applicable maritime areas, made prior to the United Nations Law of the Sea (UNCLOS) and thus legal concepts such as the continental shelf and the 200 nautical miles Exclusive Economic Zone(s) [31]. In 1977 Norway established the Svalbard fishery protection zone (SFPZ) of 200 nautical miles around the Svalbard archipelago [32]. Other states have claimed that the Treaty and its provisions concerning the equal rights to engage in fishing also apply beyond the territorial waters of the archipelago, and that Norway may not impose restrictions or take necessary enforcement measures. It is indicated by Molenaar [8] that the view of the other parties (not Norway) is more in line with the intentions of the negotiators of the Treaty in 1920. Norway is interpreting the wording of the Treaty more directly. Following from this disagreement Norway chose to establish a fisheries protection zone rather than a full economic zone [33]. Even though Norway maintains a legal right to reserve fishing in the zone exclusively for Norwegian fishermen, its management practices are non-discriminatory, and as such the Norwegian management measures in the SFPZ have generally been complied with in practice [21]. The non-discriminatory fisheries management is based on criteria of traditional fishing in the area, and as such vessels from Norway, Russia, the EU and the Faroe Islands are permitted to carry out traditional fishing activities in the area. Regulations on fisheries in the territorial sea is founded in the Svalbard Act of 1925, while the fisheries management in the SFPZ is founded in the Act on Norwegian EEZ of 1976 [34]. Even if many countries object to Norway’s ability to establish an EEZ, these questions have not been further pursued [34]. This may change if new economic resources, such as snow crab or oil and gas can be exploited in the SFPZ. Even if the SFPZ is subject to the Treaty, it can be maintained that Norway is the legislative and managing authority [35]. Portugal, Spain and the Russian Federation have on some occasions challenged Norway's enforcement in the SFPZ. Russia did so in 2011 in response to the arrest of the Russian trawler Sapphire II by the Norwegian coast guard [8]. Several challenge that Norway has this right in the SFPZ. Still, the Treaty does not provide other States Parties with the right to be involved in decision-making or enforcement in the SFPZ, as such the Supreme Court of Norway
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has upheld Norway’s right establish the SFPZ and enforce regulations (see e.g. HR-2006–1997A case 2006/871). No continental shelf resources have been exploited in the waters surrounding Svalbard. Norway claims that Svalbard has no separate continental shelf, as only states generate a continental shelf, in effect denoting that if the Svalbard Treaty is applicable to the SFPZ it would not be applicable to the shelf generated by the Norwegian mainland. The continental shelf surrounding Svalbard is thus the Norwegian continental shelf, as was accepted by the Commission on the Limits of the Continental Shelf in 2009 [36]. As no major continental shelf resources have been harvested, this has never been tried before a court. This may change if new economic resources, such as snow crab or oil and gas can be exploited with large profits on the continental shelf surrounding Svalbard. It can be argued that both the SFPZ and the continental shelf are covered by the intentions of the Treaty, thus all signatory parties have the rights to harvest snow crab. This means that Norway can manage the fishery, but nationals of all signatory states have non-discriminatory rights to harvest. For other fisheries the rights have been distributed non-discriminatorily based on traditional fishing. With new commercial species in the Svalbard area, no nations have traditionally been fishing these, and thus no countries can claim being more dependent upon this fishery than others. Even though Norway would claim sovereign rights to continental shelf resources, the country might choose to distribute fishing rights to parties already fishing in the area to mitigate conflict.
6. Closing remarks In general, the rapid snow crab colonization of the Barents Sea is creating several challenges to the management system, both in matter of ecosystem impact, sedentarity, changes in geographic distribution, conflict with other fisheries, and how to create a management regime in which both harmful ecosystem effects are limited and economic output is maximized. As such, more research is needed. The establishment of snow crab in the Barents Sea can be seen either as a natural expansion of distribution with prospect of substantial new commercial benefits, or as an alien invasion of a dangerous pest. The unavoidable matter of fact is that snow crab has established in the Barents Sea and is likely to spread throughout most of the eastern, central and northern Barents Sea. For now, snow crab have shown no significant detrimental effects for the Barents Sea ecosystem and the coastal states are not obliged to control or eradicate snow crab according to UNCLOS or CBD. Taking the rapid spreading of snow crab, the value of the stock, the ecosystem impact and the lack of efficient control mechanisms [4] into account, there are in reality no management alternatives to a profitable fishery. As no countries have questioned the sedentary status of snow crab, snow crab should be considered sedentary. Norway and Russia thus have full sovereignty over Barents Sea snow crab on their separate established parts of the Barents Sea continental shelf. However, as Norway is not yet establishing a management regime, it seems as if the country is reluctant to consolidate the sovereignty the country claims to the continental shelf surrounding Svalbard. With a changing climate and several other anthropogenic disturbances acting on marine ecosystems, it is evident that commercial stocks of both fish and sedentary species will shift in abundance and geographic distribution [37]. When several coastal stated are involved, this creates challenges when large economic values shift between Exclusive Economic Zones and continental shelves. As such, the challenges in managing snow crab may give useful insight into future issues. Effective governance might
require the ability to adapt national and international institutions to more unstable circumstances.
Acknowledgments The author wishes to thank director Geir Hønneland at the Fridtjof Nansen Institute for support and for facilitating the necessary conditions for the completion of this article.
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